The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Abandoning Defensive Crouch Conservative Constitutionalism
Back on May 6th on Balkinization, Harvard law professor Mark Tushnet had some advice for "liberals" entitled: Abandoning Defensive Crouch Liberal Constitutionalism. It provides a useful road map to what Democrats had in store for us had Hillary Clinton been elected. But it also serves as a guide to what a conservative Court should-and should not-be doing now that this constitutional bullet has been dodged. So let's see what Tushnet had to say:
Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).
I am not sure what "retaliation" he had in mind here. In law schools where there are, at best, a single right-of-center public law professor on the faculty? (At Georgetown Law we now have 3 out of 125, which makes us more diverse than most; Yale has zero.) Generations of law students and their teachers feared "retaliation" from federal courts? This seems like projection to me.
It's time to stop. Right now more than half of the judges sitting on the courts of appeals were appointed by Democratic presidents, and—though I wasn't able to locate up-to-date numbers—the same appears to be true of the district courts. And, those judges no longer have to be worried about reversal by the Supreme Court if they take aggressively liberal positions. (They might be reversed, but now there's no guarantee.) And, we shouldn't focus on the Court's docket this year, which was shaped by conservative justices thinking that they could count to five on a bunch of cases. The docket will look quite different if they can't see that path to five votes when they decide which cases to review.
Yes, despite current complaints about supposed Republican obstruction of Obama administration judicial appointees, Hans von Spakovsky reports that "President Barack Obama has actually had almost the same number of district, appellate, and Supreme Court judges confirmed as George W. Bush did during his entire eight years in office. Indeed, Obama is one up on Bush, 325 confirmations to 324." And "Mr. Obama's judicial nominees now occupy 38.19 percent of all federal judgeships—an almost identical percentage to that attained by George W. Bush (38.21 percent) by the end of his presidency." A runaway progressive inferior federal judiciary unconstrained by the Supreme Court was what we had in store had Senate Republicans not held fast and let the voters decide how to fill the vacancy left by the death of Antonin Scalia, or had voters then decided to elect Hillary Clinton. Tushnet continues:
What would abandoning defensive-crouch liberalism mean? (I've blogged about some of these points before.)
1 A jurisprudence of "wrong the day it was decided." Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales for affirmative action that really matter), Buckley v. Valeo (for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism), Casey (for the "undue burden" test), and Shelby County. (I thought about including Washington v. Davis, but my third agenda item should be enough to deal with it.) Others will have their own candidates. What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important—more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.
We are about to hear a lot about "judicial minimalism" and adhering to hallowed post-New Deal precedents of SIXTY YEARS OR MORE! (Tushnet himself favored taking the Constitution away from the courts.) And I have long maintained that, beginning with the Rehnquist Court, conservative justices adopted a "this far and no farther, except for…" approach to New Deal precedents (see here). Mainly, the "New Federalism" represented some special (nonoriginalist) carve outs of post-New Deal federal power for state governments (under the rubric of the 10th and 11th Amendments) and establishing a distant outer boundary on the use of the commerce power. (Wickard v. Filburn et al were left untouched.) This approach could fairly be called "defensive crouch conservative constitutionalism," when what was really called for was a fearless originalist constitutionalism that adhered scrupulously to the text of the Constitution rather than the texts of New Deal decisions.
As Tushnet helpfully previewed, had Clinton been elected, thirty years of "conservative" tinkering-at-the-margin was going to be swept away and much, much more. No doctrine of stare decisis or "precedent" would have stood in the way. The left side of the Court has never conceded the precedential value of the past 30 years of "conservative" decisions. In constitutional law, the doctrine of stare decisis is a ratchet and ratchets only go one way, and that way is towards increased national power, and delegation to the Administrative-Executive State-qualified only by judicially-selected "fundamental rights" and protected "suspect classes."
But Tushnet was right in principle. As I have long maintained (see here), the law of the Constitution should take priority over the mistaken rulings of previous justices. What Tushnet and I disagree about is what the Constitution means. He thinks it means progressive results; I think it means what it says. If New Deal, Warren and Burger court decisions were-in Tushnets words-"wrong the day they were decided," then they should be reversed and replaced by the original meaning of the Constitution itself.
Of course, as I have also insisted, very little of what the Supreme Court does involves applying the original meaning of the Constitution directly to individual cases and controversies. Rather, it develops implementing doctrines or rules-called "constitutional law"-that put this meaning into effect. Such doctrines rightly evolve over time as new circumstances arise. In this way, constitutional law is evolving and "living" when putting into effect the original meaning of the text. And such doctrines should be followed as precedents by the Supreme Court and by inferior courts until their limitations are revealed by subsequent litigation.
But where the text has itself been misinterpreted, or where doctrine is not implementing the text in good faith-that is, consistent not only with its letter but also with its spirit-then that doctrine should be reversed. This does not mean relitigating and changing the outcomes of previous decisions upholding this program or that agency. Rejecting stare decisis when previous decisions conflict with the Constitution does not mean rejecting res judicata. But it does mean refusing to consider the reasoning of these decisions to be "precedents" to be applied by extension to new cases and controversies arising in the future. (Following precedents in this way is what creates slippery slopes.)
It is high time for conservative justices to follow Tushnet's advice for progressive judges and reconsider cases they know full well to be in conflict with the Constitution's original scheme (as amended). If they conflict with the original meaning of the Constitution, these cases were "wrong on the day they were decided."
2 The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.) And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for "religious liberty" protections. Only now that they've lost the battle over LGBT rights, have they made those protections central—seeing them, I suppose, as a new front in the culture wars. But, again, they've already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That's mostly a question of tactics. My own judgment is that taking a hard line ("You lost, live with it") is better than trying to accommodate the losers, who—remember—defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn't work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war's over, and we won.
While Tushnet attributes the origination of the "culture war" metaphor to Justice Scalia, Scalia was only candidly acknowledging and labeling an already existing "state of war," not declaring a new one. And in stark contrast with Tushnet, Scalia was faulting judges for taking sides in the culture war taking place outside the courts. Contrary to Scalia, then, Tushnet wants the courts to ram his side of the culture war down the throats of any recalcitrant Americans he calls "losers." But the Trump victory represents a repudiation of Tushnet's claim that the culture war has already been won by the Left. The "losers" have struck back.
To be clear, I strongly support the fundamental liberties and equal rights of all, including LGBT. But I also support the liberty of those with different moral and religious views. Moving on:
3 Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren't worth overruling. Take Wal-Mart: Confine it to its unusual facts (a huge nation-wide class, a questionable theory of liability), and don't treat it as having any generative power in other cases. Or Washington v. Davis, which said that disparate racial impact wasn't enough to trigger strict scrutiny, but that sometimes such an impact could support an inference of impermissible motive: Play the "sometimes" for all its worth. Defensive-crouch liberalism was afraid to be aggressive about the precedents because of a fear of reversal by higher courts. That fear can now be put aside. (Judge Reinhardt's essay on habeas corpus, in the Michigan Law Review, is an exemplary discussion of how liberals can exploit ambiguities and loopholes.)
Another reminder of what we were going to experience if Clinton won: aggressive progressive constitutionalism nation-wide and at all levels while the Supreme Court looked the other way. But still good advice for conservative judges. 'Nuff said.
4 Related: Remember that doctrine is a way to empower our allies and weaken theirs. Conservative decisions on class-action arbitration should be understood as part of a long-term project of defunding the left. Much of the current Court's voting rights jurisprudence strengthens Republican efforts selectively to shrink the electorate. Similarly with campaign finance jurisprudence. I don't mean that these doctrines are consciously designed by the justices to have those effects, but outsiders—academics and activists—should understand that that's what they do. (Nor do I mean that the efforts always succeed—see Evenwel for a failure.)
Whereas Tushnet's a legal realist and a Crit, I believe in the rule of law, which realists dismiss as "formalism." So I do not agree with him about politicizing judicial decisions. (While I am a libertarian who makes constitutional claims, I reject the label I am often given as a "libertarian constitutional theorist." I strive as best I can, however imperfectly, to interpret the Constitution in good faith, subject to the same confirmation biases as everyone else.) Conservative judges should remain above politics in their decision making.
But adhering to the fundamental principles of limited federal powers-which has the effect of empowering states-or the separation of powers-which has the effect of undermining the legitimacy of the progressives' Administrative-Executive State, is not being "political." It is following the letter and spirit of the Constitution itself-the parts that have had to be redacted from the text to get constitutional law to conform with the progressive vision of governance. By the same token, neither should conservatives redact the Ninth Amendment or Privileges or Immunities Clause as they are wont to do because of their distaste for protecting unenumerated liberties like the right to raise your own child as you see fit (which is not expressly stated in the Constitution).
5 Our models are Justices William Brennan and Thurgood Marshall, not David Souter or John Marshall Harlan. With some ambivalence I'd add Justice Ruth Bader Ginsburg to the list, the reluctance arising from the fact that her work as a judge has been shaped more than it should be by defensive crouch constitutionalism, particular in her sensitivity to the possibility of backlash. Still, when the votes are there, she's been much like Brennan and Marshall (personality aside). Famously, Brennan said that he'd been around long enough to know what it was like to win, and what it was like to lose, implying that "this too shall pass," though it's taken a long time. (Or, channeling Sophie Tucker [or Mae West, or Beatrice Kaufman], he 'd been a winner and a loser, and winning is better.)
I don't have many heroes among past justices and find all to be flawed, so I cannot name many "role models." But conservatives would do far worse than to follow the first Justice John Marshall Harlan-a Kentucky Republican-who solo-dissented in the Civil Rights Cases and in Plessy v. Ferguson (the way Justice Scalia solo-dissented in Morrison v. Olson). In both cases, Harlan came far closer than the majority to the original meaning of the 13th and 14th Amendments. Even in Lochner, Justice Harlan did not wholly abandon rationality and arbitrariness review under the Due Process of Law clauses. Instead, he placed the burden to show irrationality on the challenger, but a burden that presumably could still be met (as even the New Deal Court reaffirmed in U.S. v. Carolene Products). It was not until Williamson v. Lee Optical that the Warren Court supplanted irrationality and arbitrariness review with Holmesian fictitious "rational basis review"- the approach that has been unquestioningly adopted by modern judicial conservatives. (See here)
So far as modern role-models go, Clarence Thomas has been the justice most willing to put the original meaning of the Constitution above previous decisions of the Court. He could use some help.
6 Finally (trigger/crudeness alert), fuck Anthony Kennedy. I don't mean that liberals should treat him with disrespect. But defensive-crouch liberalism meant not only trying to figure out arguments that would get Kennedy's apparently crucial vote (not so crucial any more), but also trying to milk his opinions—and more generally, obviously conservative opinions—for doctrines that might be awkwardly pressed into the service of liberal goals. (Think here of how liberal constitutional scholars treated Kennedy's [truly silly] concurring opinion in Parents Involved ["You can deal with the consequences of segregated housing patterns by locating new school construction carefully"—in districts that are closing rather than building schools], or his "views" about affirmative action, or recasting the Court's federalism cases as actually good for liberals.) There's a lot of liberal constitutional scholarship taking Anthony Kennedy's "thought" and other conservative opinions as a guide to potentially liberal outcomes if only the cases are massaged properly. Stop it. (See agenda items 1 and 3 for how to treat those opinions.)
This is the respect you get from the Left when you bend over backwards to accommodate them. So "stop it." Just follow the Constitution and stop worrying about the perceived "legitimacy" of the Court. The more you worry about perceived legitimacy, the more you undermine it. And as for Justice Kennedy's constitutional approach: No justice is more motivated by a commendable commitment to individual liberty than is Justice Kennedy. (See here.) And I, for one, found Justice Kennedy's concurrence in Parents Involved to be far from silly. Consciously situating schools to foster racial integration in light of existing housing patterns is qualitatively different in principle from labeling students by race and sending them to schools on that basis. Agree or not, dismissing this distinction as "truly silly" is truly silly.
I just wish Justice Kennedy viewed adhering to the original meaning of the text as the best means to the end of protecting that liberty, as well as being the only proper role of judges who have taken an oath to uphold "this Constitution." But while Justice Kennedy often reaches results that can be justified on originalist grounds, regrettably that has not been his methodology.
Here now are Tushnet's concluding words:
Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.
Perhaps. But if Donald Trump should replace Justice Scalia with a "conservative" who is committed to enforcing the original meaning of the whole Constitution, and nothing but the Constitution-a justice who will abandon "defensive crouch conservative constitutionalism"-perhaps not.
I had a dream in which the conservative justices in the run up to Hillary Clinton's impending and inevitable victory looked back-like Scrooge in A Christmas Carol-on 30 years of crouching conservative judicial decisions and they suddenly realized it was all going to be for naught. Soon it would be as though it never happened. They got that feeling you get in the pit of your stomach when you know you've messed up.
Then on November 9th, they got what felt like a stay of execution and reprieve. And, like the Alberta oil men who vowed, "Dear God, give us another oil boom and, this time, we promise we won't piss it away," in my dream these justices vowed to themselves that, in the future, they would finally do something that could not be reversed overnight by "liberal" judges following Mark Tushnet's premature advice. They resolved to take the steps necessary to restore our lost Constitution in ways that cannot so easily be reversed when the political worm eventually turns as it always does.
Well, I did say it was a dream.